Citation Nr: 0920749
Decision Date: 06/03/09 Archive Date: 06/09/09
DOCKET NO. 95-35 813 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Salt Lake
City, Utah
THE ISSUES
1. Entitlement to an evaluation in excess of 10 percent for
service-connected unstable sternum, post coronary artery
bypass graft (CABG), with continued complaints of pain.
2. Entitlement to compensation benefits for pulmonary
fibrosis pursuant to 38 U.S.C.A. § 1151.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
B. Berry, Associate Counsel
INTRODUCTION
The Veteran served on active duty from Jun e1953 to June
1956.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a rating decision dated in July 1995 by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Salt Lake City, Utah.
The Board observes that this case was originally before the
Board in January 1998, at which time the Board remanded the
issues on appeal to the RO for additional development. The
RO completed the additional development and continued the
denial of benefits. The case returned to the Board and in
June 2000 the Board denied entitlement to compensation
benefits for pulmonary fibrosis pursuant to 38 U.S.C.A. §
1151 and entitlement to an initial increased rating service-
connected unstable sternum, post coronary artery bypass graft
(CABG), with continued complaints of pain. The Veteran
appealed the Board's June 2000 decision denying the Veteran's
claims to the United States Court of Appeals for Veterans
Claims (Court). In April 2001, the Court vacated the portion
of the Board's decision covering the issues currently on
appeal and remanded the issues to the Board for consideration
of the Veterans Claims Assistance Act of 2000.
Subsequently, the June 2002 Board decision denied the
Veteran's claims on appeal. The Veteran appealed this
decision to the Court, which in January 2003 vacated and
remanded the issues to the Board for inadequate reasons and
bases in its decision.
In September 2003, the Board remanded the issues to the RO
for further procedural and evidentiary development. After
the RO attempted to complete the requests in the Board's
remand, it continued the denial of the issues on appeal. In
September 2005, the Board continued the denial of the claims.
The Veteran appealed the June 2005 decision to the Court,
which in February 2008 vacated and remanded the issues to the
Board for noncompliance with the instructions of the Board's
2003 remand order with respect to the April 2005 VA
examination and inadequate reasons and bases in its decision.
The issue of entitlement to compensation benefits for
pulmonary fibrosis pursuant to 38 U.S.C.A. § 1151 is
addressed in the REMAND portion of the decision below and is
REMANDED to the RO via the Appeals Management Center (AMC),
in Washington, DC.
FINDINGS OF FACT
1. The evidence shows that the Veteran's unstable sternum,
post CABG, with continued complaints of pain is manifested by
a midline vertical scar with tenderness and a stable sternum.
2. The evidence shows that the Veteran's service-connected
unstable sternum, post CABG, with continued complaints of
pain is manifested by pain, tenderness and fatigability of
Muscle Group XXI with limited ability to push, pull, and
lift.
CONCLUSIONS OF LAW
1. The schedular criteria for a rating in excess of 10
percent for the Veteran's service connected unstable sternum,
post CABG, is not met. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.118,
Diagnostic Codes 7804, 7805 (in effect before and after
August 2002).
2. The scheduler criteria for a separate rating of 10
percent for residuals of an injury to the thoracic muscle
group have been met. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.56,
4.73, Diagnostic Code 5321 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Veteran's Claims Assistance Act
The Veterans Claims Assistance Act of 2000 (VCAA) imposes a
duty on the United States Department of Veterans Affairs (VA)
to notify and assist a claimant in developing a claim.
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a
complete or substantially complete application for benefits,
VA is required to notify the claimant and his or her
representative, if any, of any information, and any medical
or lay evidence, that is necessary to substantiate the claim.
38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v.
Principi, 16 Vet. App. 183 (2002). Proper notice from VA
must inform the claimant of any information and evidence not
of record (1) that is necessary to substantiate the claim;
(2) that VA will seek to provide; (3) that the claimant is
expected to provide; and (4) must ask the claimant to provide
any evidence in her or his possession that pertains to the
claim in accordance with 38 C.F.R. § 3.159(b)(1). This
notice must be provided prior to an initial unfavorable
decision on a claim by the agency of original jurisdiction
(AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir.
2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).
For an increased-compensation claim, section 5103(a)
requires, at a minimum, that the Secretary notify the
claimant that, to substantiate a claim, the claimant must
provide, or ask the Secretary to obtain, medical or lay
evidence demonstrating a worsening or increase in severity of
the disability and the effect that worsening has on the
claimant's employment and daily life. Vazquez-Flores v.
Peake, 22 Vet. App. 37 (2008). Further, if the Diagnostic
Code under which the claimant is rated contains criteria
necessary for entitlement to a higher disability rating that
would not be satisfied by the claimant demonstrating a
noticeable worsening or increase in severity of the
disability and the effect that worsening has on the
claimant's employment and daily life (such as a specific
measurement or test result), the Secretary must provide at
least general notice of that requirement to the claimant.
Additionally, the claimant must be notified that, should an
increase in disability be found, a disability rating will be
determined by applying relevant Diagnostic Codes, which
typically provide for a range in severity of a particular
disability from noncompensable to as much as 100 percent
(depending on the disability involved), based on the nature
of the symptoms of the condition for which disability
compensation is being sought, their severity and duration,
and their impact upon employment and daily life. As with
proper notice for an initial disability rating and consistent
with the statutory and regulatory history, the notice must
also provide examples of the types of medical and lay
evidence that the claimant may submit (or ask the Secretary
to obtain) that are relevant to establishing entitlement to
increased compensation-e.g., competent lay statements
describing symptoms, medical and hospitalization records,
medical statements, employer statements, job application
rejections, and any other evidence showing an increase in the
disability or exceptional circumstances relating to the
disability. Vazquez-Flores at 43-44.
In this case, a March 2004 VCAA letter provided notice to the
Veteran regarding what information and evidence is needed to
substantiate his claims for increased ratings, as well as
what information and evidence must be submitted by the
Veteran and what information and evidence will be obtained by
VA. This letter advised the Veteran to submit evidence from
medical providers, statements from others who could describe
their observations of his disability level, and his own
statements describing the symptoms, frequency, severity, and
additional disablement caused by his disabilities. The
Veteran was also informed that the diagnostic codes for
rating skin disorders were changed effective August 30, 2002
and that the Veteran would be evaluated under the old and new
criteria. However, this portion of the duty to notify was
satisfied subsequent to the initial AOJ decision. The Board
finds that this error was not prejudicial to the Veteran
because the actions taken by VA after providing the notice
have essentially cured the error in the timing of the notice.
Not only has the Veteran been afforded a meaningful
opportunity to participate effectively in the processing of
his claim and given ample time to respond, but the AOJ also
readjudicated the case by way of the supplemental statement
of the case issued in April 2005 after the notice was
provided. See Prickett v. Nicholson, 20 Vet. App. 370, 376
(2006) (the issuance of a fully compliant VCAA notification
followed by readjudication of the claim, such as an SOC or an
SSOC, is sufficient to cure a timing defect).
The Board notes that the VCAA letter dated in March 2004 did
not specifically inform the Veteran that he should provide
evidence demonstrating the effect the worsening of his
service-connected disability has on his employment and daily
life. The Board finds that this notice error did not affect
the essential fairness of the adjudication because the
Veteran demonstrated that he had actual knowledge of that
information. See Vazquez-Flores v. Peake, 22 Vet. App. 37,
48 (2008) ("Actual knowledge is established by statements or
actions by the claimant or the claimant's representative that
demonstrates an awareness of what was necessary to
substantiate his or her claim.") (citing Dalton v.
Nicholson, 21 Vet. App. 23, 30-31 (2007)). The Veteran
asserted in a July 2003 letter that his sternum instability
and related pain prevented him from engaging in physical
work. He asserted that the pain had gotten worse and he
could not lift, push or pull without hurting. Furthermore,
he stated in the letter that he was unable to work due to the
sternum pain. Accordingly, the Court concludes that the
record on appeal shows that the appellant had actual
knowledge that he should provide evidence of how his
disability affects his employment and daily life, that he
actually submitted such evidence and therefore, the above
VCAA notice error did not affect the essential fairness of
the Board's decision. See Sanders v. Nicholson, 487 F.3d
881, 889 (Fed.Cir.2007), Newhouse v. Nicholson, 497 F.3d
1298, 1301 (Fed.Cir.2007), Conway v. Principi, 353 F.3d 1369,
1375 (Fed. Cir. 2004), and Vazquez-Flores, 22 Vet. App. at
48.
With regard to the duty to assist, the claims file contains
service treatment records, VA treatment records, VA
examination reports and lay statements. There is no
indication in the file that there are additional relevant
records that have not yet been obtained. Based on the
foregoing, the Board finds that all relevant facts have been
developed properly and sufficiently in this appeal and no
further development is required to comply with the duty to
assist the Veteran in developing the facts pertinent to his
claim.
II. Merits of the Claim for an Increased Rating
Disability ratings are determined by applying the criteria
set forth in VA's Schedule for Rating Disabilities, which is
based on the average impairment of earning capacity.
Individual disabilities are assigned separate diagnostic
codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there
is a question as to which of two evaluations shall be
applied, the higher evaluation will be assigned if the
disability picture more nearly approximates the criteria for
that rating. Otherwise, the lower rating will be assigned.
See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree
of disability will be resolved in favor of the Veteran. See
38 C.F.R. § 4.3. When the evidence is in relative equipoise,
the Veteran is accorded the benefit of the doubt. See 38
U.S.C.A. § 5107(b).
In general, when an increase in the disability rating is at
issue, it is the present level of disability that is of
primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58
(1994). However, when the current appeal arose from the
initially assigned rating, consideration must be given as to
whether staged ratings should be assigned to reflect
entitlement to a higher rating at any point during the
pendency of the claim. Fenderson v. West, 12 Vet. App. 119
(1999). Moreover, staged ratings are appropriate in any
increased-rating claim in which distinct time periods with
different ratable symptoms can be identified. Hart v.
Mansfield, 21 Vet. App. 505 (2007).
The Veteran's history of an unstable sternum with continued
complaints of pain has been evaluated using the criteria of
38 C.F.R. Section 4.118, Diagnostic Codes 7804 and 7805, as
there is no diagnostic code that sets forth criteria for
assigning disability evaluations for pain of the sternum and
limitation. When an unlisted condition is encountered, it is
permissible to rate that condition under a closely related
disease or injury in which not only the functions affected,
but also the anatomical localization and symptomatology, are
closely analogous. 38 C.F.R. § 4.20. Diagnostic Codes 7804
and 7805 (in effect before and after August 30, 2002) were
chosen as they allow for the assignment of a disability
evaluation for scarring. Former Diagnostic Code 7804 allowed
for the assignment of a 10 percent evaluation when there was
evidence of superficial, tender and painful scarring on
objective demonstration, and the revised version of this Code
provides a 10 percent rating when there is evidence of
superficial and painful scarring on examination. The Veteran
is already in receipt of a 10 percent rating.
Diagnostic Code 7805 continues to allow for the assignment of
a disability evaluation based on limitation of function of
the part affected. However, the competent medical evidence
does not show that the movement of any joint has been
affected by this scarring.
Under the revised criteria for skin disorders, a rating in
excess of 10 percent is available for scars that are in
excess of 12 square inches, provided that the scars are deep
or cause the Veteran limited motion. 38 C.F.R. § 4.118,
Diagnostic Code 7801. Thus, while the Veteran's scar may
approach 12 inches in length (approximate distance from the
sternal notch to the xiphoid process), as it has not been
shown to be deep or to cause limited motion of an affected
joint, this Diagnostic Code would not provide a basis for a
higher rating. A maximum rating of 10 percent is also now
available for superficial scars covering a greater area of
the body without limited motion and superficial, unstable
scars, but the Veteran's scarring is already rated as 10
percent disabling. 38 C.F.R. § 4.118, Diagnostic Codes 7802,
7803.
The evidence of record clearly shows that the Veteran has
continued to have moderate tenderness of the midline scar
since the effective date of his award, thus warranting the 10
percent disability evaluation assigned under Diagnostic Code
7804. As noted above, the rating criteria for skin disorders
in effect prior to August 30, 2002 and the regulation of
August 30, 2002 does not provide any basis for a higher
rating of the Veteran's disability.
The Board observes that a VA examiner in September 2004 noted
that the Veteran's residuals of sternal pain and tenderness
included impairment of the thoracic muscle group.
Accordingly, the Board will also consider whether the Veteran
is entitled to a separate rating for injury of the thoracic
muscle group.
The RO has evaluated the Veteran's disability according to
the Schedule of Ratings for Muscle Injuries, under Diagnostic
Code 5321, Muscle Group XXI, the thoracic muscles of
respiration. Injuries to muscle group XXI warrant a 20
percent valuation for severe or moderately severe injuries, a
10 percent evaluation for moderate injuries, and a
noncompensable evaluation for slight injuries. Words such as
"slight," "moderate," "moderately severe" and "severe"
are not defined in the VA Schedule for Rating Disabilities.
Rather than applying a mechanical formula, the Board must
evaluate all of the evidence to the end that its decisions
are "equitable and just." 38 C.F.R. § 4.6. It should also
be noted that use of terminology such as "moderate" or
"severe" by VA examiners and others, although an element of
evidence to be considered by the Board, is not dispositive of
an issue.
In evaluating muscle injuries from trauma, consideration is
given to the history and complaints associated with the
particular injury, as well as the current objective findings.
38 C.F.R. § 4.56. Such factors, however, are only
guidelines, which are to be considered with all evidence in
the individual case. Robertson v. Brown, 5 Vet. App. 70
(1993).
The provisions of 38 C.F.R. § 4.56 also provide guidance in
rating muscle injuries. Under VA regulations, muscle
injuries are classified as slight, moderate, moderately
severe, or severe. 38 C.F.R. § 4.56(d). The various levels
are determined by evaluating the type of injury; the history
and complaint associated with the injury; and the objective
findings. For VA rating purposes, the cardinal signs and
symptoms of muscle disability are loss of power, weakness,
lowered threshold of fatigue, fatigue-pain, and impairment of
coordination and uncertainty of movement. 38 C.F.R. §
4.56(c).
A slight muscle disability typically results from a simple
wound of the muscle without debridement or infection. Slight
disability of muscle is reflected by history and complaint
such as service department records of a superficial wound
with brief treatment and return to duty. Healing of slight
muscle injuries is followed by good functional results.
Slight disability of muscles includes none of the cardinal
signs or symptoms of muscle disability as defined in 38
C.F.R. 4.56 (c). Objective findings characteristic of slight
muscle disability include minimal scarring, no evidence of
fascial defect, atrophy, or impaired tonus, no impairment of
function, and no metallic fragments retained in muscle
tissue. 38 C.F.R. § 4.56 (d)(1).
A moderate muscle disability typically result from a through
and through or deep penetrating wound of short track from a
single bullet, small shell, or shrapnel fragment, without the
explosive effect of a high velocity missile and residuals of
debridement or prolonged infection. History and complaint
characteristic of moderate disability of muscle includes
service department records or other evidence of in-service
treatment for the wound. For a finding of moderate
disability of muscle, there should be a record of consistent
complaint of one or more of the cardinal signs and symptoms
of muscle disability as defined in 38 C.F.R. § 4.56(c),
particularly lowered threshold of fatigue after average use,
affecting the particular functions controlled by the injured
muscles. Objective findings characteristic of moderate
muscle disability include small or linear entrance and (if
present) exit scars, indicating a short track of the missile,
some loss of deep fascia or muscle substance or impairment of
muscle tonus and loss of power or lowered threshold of
fatigue when compared to the sound side. 38 C.F.R. §
4.56(d)(2). A through-and-through injury with muscle damage
shall be evaluated as no less than a moderate injury for each
group of muscles damaged. 38 C.F.R. § 4.56(b).
A moderately severe muscle injury is the result of a through
and through or deep penetrating wound by a small high
velocity missile or a large low velocity, with debridement,
prolonged infection or sloughing of soft parts and
intermuscular scarring. The objective findings include
entrance and (if present) exit scars indicating the track of
the missile through one or more muscle groups; indications on
palpation of loss of deep fascia, muscle substance or normal
firm resistance of the muscles compared to the sound side;
tests of strength and endurance compared with the sound side
demonstrate positive evidence of impairment. 38 C.F.R. §
4.56(d)(3).
A severe muscle disability results from a through and through
or deep penetrating wound due to high velocity missile, or
large or multiple low velocity missiles, or with shattering
bone fracture or open comminuted fracture with extensive
debridement, prolonged infection, or sloughing of soft parts,
intermuscular binding and scarring. The objective findings
would include ragged, depressed and adherent scars indicating
wide damage to muscle groups in the missile track; palpation
shows loss of deep fascia or muscle substance, or soft flabby
muscles in the wound area; muscles that swell and harden
abnormally in contraction; tests of strength, endurance, or
coordinated movements compared with the corresponding muscles
of the uninjured side indicate severe impairment of function.
If present, the following are also signs of severe muscle
disability: (A) x-ray evidence of minute multiple scattered
foreign bodies indicating intramuscular trauma and explosive
effect of the missile; (B) adhesion of the scar to one of the
long bones, scapula, pelvic bones, sacrum, or vertebrae, with
epithelial sealing over the bone rather than true skin
covering in an area where bone is normally protected by
muscle; (C) diminished muscle excitability to pulsed
electrical current in electrodiagnostic tests; (D) visible or
measurable atrophy; (E) adaptive contraction of an opposing
group of muscles; (F) atrophy of muscle groups not in the
track of the missile, particularly of the trapezius and
serratus in wounds of the shoulder girdle; and (G) induration
or atrophy of an entire muscle following simple piercing by a
projectile. 38 C.F.R. § 4.56(d)(4).
The Board notes that the Veteran's sternal pain is due to
complications from a coronary artery bypass graft in January
1987 resulting in a significant sternal infection
postoperatively. The Board observes that a February 1987
treatment record shows that the Veteran's mid lower sternum
was tender to palpation. The Veteran reported in a December
1995 RO hearing that the pain in his sternum prevents him
from engaging in activities that involve carrying, pushing or
pulling. He also asserted that the pain limits his physical
activities. A March 1998 VA progress note revealed that the
Veteran complained of occasional sternal discomfort when
supine and increased pain at rest. A VA examination in May
1999 revealed that the Veteran complained of pain in the mid-
sternum region with continuous aching aggravated by lifting,
pulling and bending. The Veteran underwent a VA examination
in September 2004. The examiner documented that the Veteran
had residual pain in the sternal region. The pain was
located in the midsternal region and was characterized as a
dull aching pain. The pain was aggravated and more severe
with local pressure, pushing, pulling and lifting. Coughing
and deep breathing also aggravated the pain. The examiner
noted that there was mild impairment of the thoracic muscle
group and that the sternal tenderness was not confined to the
scar.
Based on the evidence set forth above, the Board finds that a
separate 10 percent rating is warranted under Diagnostic Code
5321 for service-connected sternum; post CABG, with continued
complaints of pain. The Veteran's thoracic muscle results in
pain, tenderness and fatigue of the affected muscle group.
Medical evidence of record reveals increased pain with local
pressure, pushing, pulling and lifting. Accordingly, the
evidence indicates that the Veteran has loss of power or
lowered threshold of fatigue. The Board concludes that these
findings most closely approximate the criteria for a 10
percent rating for moderate muscle injury of Muscle Group XXI
under Diagnostic Code 5321.
A rating in excess of 10 percent is not warranted under
Diagnostic Code 5321 because the evidence does not show
moderately severe or severe injury of the affected muscle
group. The evidence of record does not indicate loss of deep
fascia, muscle substance or normal firm resistance of the
thoracic muscle. Competent medical evidence does not show
that the Veteran is unable to keep up with work requirements
solely due to any thoracic muscle damage. The medical
evidence reveals that the Veteran does not have a ragged,
depressed or adherent scar indicating wide damage to the
muscle groups. Thus, the Veteran's symptoms do not more
closely approximate a 20 percent disability rating.
The Board notes that a staged rating is not applicable in
this case. The competent medical evidence of record does not
show that the Veteran's symptoms of a sternum disability have
fluctuated materially during the course of this appeal. As
such, a staged rating is not warranted. Fenderson v. West,
12 Vet. App. 119 (1999).
According to VA regulation, in exceptional cases where
schedular ratings are found to be inadequate, the RO may
refer a claim to the Under Secretary for Benefits or the
Director, Compensation and Pension Service, for consideration
of "an extraschedular evaluation commensurate with the
average earning capacity impairment due exclusively to the
service-connected disability or disabilities." 38 C.F.R. §
3.321(b)(1). An extraschedular disability rating is
warranted based upon a finding that the case presents such an
exceptional or unusual disability picture with such related
factors as marked interference with employment or frequent
periods of hospitalization that would render impractical the
application of the regular schedular standards. See 38
C.F.R. § 3.321(b)(1); Fanning v. Brown, 4 Vet. App. 225, 229
(1993).
Under Thun v. Peake, 22 Vet App 111 (2008), there is a three
step inquiry for determining whether a Veteran is entitled to
an extraschedular rating. First, the Board must determine
whether the evidence presents such an exceptional disability
picture that the available schedular evaluations for the
service-connected disability are inadequate. Second, if the
schedular evaluation does not contemplate the Veteran's level
of disability and symptomatology and it is found inadequate,
the Board must determine whether the claimant's disability
picture exhibits other related factors such as those provided
by the regulation as "governing norms." Third, if the
rating schedule is inadequate to evaluate a Veteran's
disability picture and that picture has attendant thereto
related factors such as marked interference with employment
or frequent periods of hospitalization, then the case must be
referred to the Under Secretary for Benefits or the Director
of the Compensation and Pension Service to determine whether
the Veteran's disability picture requires the assignment of
an extraschedular rating.
In this case, the evidence does not show such an exceptional
disability picture that the available schedular evaluation
for the service-connected unstable sternum, post CABG, with
continued complaints of pain is inadequate. A comparison
between the level of severity and symptomatology of the
Veteran's sternum disorder with the established criteria
found in the rating schedules for a scars and muscle injuries
show that the rating criteria reasonably describes the
Veteran's disability level and symptomatology. To the extent
that the Veteran's service-connected disability affects his
employment, such has been contemplated in the assignment of
the current schedular evaluation. The evidence does not
indicate that the Veteran's service-connected unstable
sternum, post CABG, with continued complaints of pain by
itself has caused marked interference with employment beyond
that already contemplated in the assigned evaluation,
necessitated any frequent periods of hospitalization, or
otherwise rendered impracticable the application of the
regular schedular standards. Under these circumstances, and
in the absence of factors suggestive of an unusual disability
picture, further development in keeping with the procedural
actions outlined in 38 C.F.R. § 3.321(b)(1) is not
warranted. See Bagwell v. Brown, 9 Vet. App. 337, 339
(1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); Moyer
v. Derwinski, 2 Vet. App. 289, 293 (1992); Van Hoose v.
Brown, 4 Vet. App. 361, 363 (1993) (noting that the
disability rating itself is recognition that industrial
capabilities are impaired).
ORDER
Entitlement to an evaluation of 10 percent for service-
connected unstable sternum, post coronary artery bypass graft
(CABG), with continued complaints of pain is denied.
Entitlement to a separate rating of 10 percent for residuals
of an injury to the thoracic muscle group is granted.
REMAND
The Board notes that the February 2008 Court decision
concluded that the Board's finding that VA satisfied its duty
to assist was clearly erroneous. Specifically, the Court
determined that the April 2005 VA examination report for the
Veteran's claim of benefits under 38 U.S.C.A § 1151 for
pulmonary fibrosis did not comply with the instructions
contained in the Board's 2003 remand order. VA has an
obligation to ensure compliance with remands from the Board.
See Adams v. Principi, 256 F.3d 1318, 1322 (Fed. Cir. 2001).
Thus, the issue of entitlement to compensation benefits for
pulmonary fibrosis pursuant to 38 U.S.C.A. § 1151 must be
remanded for another VA opinion.
In addition, the Board observes that during the pendency of
this appeal, the Court held that VA must provide notice of
all five elements of a service connection claim, including
the degree of disability and the effective date of an award.
Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the
present appeal, the Veteran was not provided with notice
regarding the type of evidence necessary to establish a
disability rating or effective date with regard to the issue
of entitlement to compensation benefits for pulmonary
fibrosis.
Accordingly, the case is REMANDED for the following action:
1. The RO should issue a corrective VCAA
notice letter to the Veteran regarding
his claim for compensation under to 38
U.S.C.A. § 1151. The should provide
the Veteran with notice regarding the
type of evidence necessary to establish
a disability rating or effective date
for his claim of compensation benefits
for pulmonary fibrosis. See Dingess v.
Nicholson, 19 Vet. App. 473 (2006).
2. The RO should provide the Veteran with
a VA opinion from a pulmonologist
regarding the issue of whether the
medical evidence shows additional
pulmonary disability resulting from the
Veteran's surgery and subsequent VA
hospitalization and treatment at the VA
medical facility in Salt Lake City,
Utah, from January 3, 1987, to January
23, 1987.
The claims folder, including a copy of
this remand, must be made available to
and reviewed by the examiner.
Please advise the examiner that the
Veteran asserts that he developed
pulmonary fibrosis as a result of the
operation in 1987 and the course of
events following the surgery and
treatment that the Veteran received.
The examiner's attention is also
directed to documentation from a number
of medical treatises, as supplied by
the Veteran and contained in the claims
file, submitted to support the
Veteran's theory that VA's
administration of oxygen at "high"
percentages after his January 1987
surgery was a causal factor in the
development of his current pulmonary
fibrosis.
The examiner should review and discuss
the substance of the surgery reports,
the significant amount of fluid in the
Veteran's lungs after surgery, the
treatment of "intensive pulmonary
toilet," the cough productive of thick
sputum and the infection in the
Veteran's chest wall and sternum in
conjunction with the questions below.
The examiner is requested to address
the following questions:
a. Does the medical evidence of
record show that it is as likely as
not (i.e., a 50 percent or greater
probability) that the Veteran
developed any identifiable additional
pulmonary disability resulting from
the surgery at VA and the subsequent
VA treatment during his
hospitalization at the VA medical
facility in Salt Lake City, Utah,
from January 3, 1987, to January 23,
1987? The examiner should
specifically discuss whether the
surgery reports, the significant
amount of fluid in the Veteran's
lungs after surgery, the treatment of
"intensive pulmonary toilet," the
cough productive of thick sputum and
the infection in the Veteran's chest
wall and sternum caused or aggravated
a pulmonary disability, including
damage to the lung tissue. The
examiner should include an analysis
of comparing the condition of the
Veteran's lungs prior to the surgery
with the condition of his lungs after
the surgery. The examiner should
also discuss whether the lung
condition after the surgery was
completely due to the natural
progress of a lung disability that
had existed prior to the surgery.
b. If there was additional pulmonary
disability from the January 1987
surgery and hospitalization, what is
the correct diagnostic classification
of such additional pulmonary
disability?
c. If the medical evidence shows that
it is at least as likely as not
(i.e., a 50 percent or greater
probability) that there is a causal
relationship between the January 1987
VA surgery or resulting treatment and
the development of additional
pulmonary disability, please comment
as to which specific components of
the additional pulmonary disability
are due to VA treatment as opposed to
other causes, including: the
"baseline" level of disability
present before VA treatment; any
disability due to the natural
progress of the disease or injury;
and any disability which is merely
coincidental.
d. What is the etiology of the
Veteran's current pulmonary
disability or disabilities, to
include pulmonary fibrosis?
The examiner should provide a complete
rationale, including a discussion of
the facts and medical principles
involved, for all conclusions reached.
3. Upon completion of the foregoing, the
RO should readjudicate the Veteran's
claim of entitlement to compensation
benefits for pulmonary fibrosis
pursuant to 38 U.S.C.A. § 1151, based
on a review of the entire evidentiary
record. If the benefits sought on
appeal remains denied, the RO should
provide the Veteran and his
representative with a supplemental
statement of the case and the
opportunity to respond thereto.
Thereafter, subject to current
appellate procedure, the case should be
returned to the Board for further
consideration, if in order.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
______________________________________________
John E. Ormond, Jr.
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs